On August 30, 2011, the National Labor Relations Board (“NLRB”) published a rule in the Federal Register requiring most private sector employees to post a notice informing employees of their rights under the National Labor Relations Act (“NLRA”).

The new rule, which takes effect on November 14, 2011, requires employers covered by the NLRA to post an 11×17 inch notice in all places where other personnel notices are typically published. In addition, employers that customarily communicate with employees regarding personnel policies or rules on intranet or internet sites must also post the required notice on those sites. The rule sets forth the content of the required notice, which must include information about employees’ right to form, join or assist a union; to bargain collectively; to join in other concerted activities; and to refrain from concerted activities. Copies of the official notice will be available on the NLRB website, http://www.nlrb.gov.

It is important to note that the new posting requirement is not limited to employers with unionized workforces. The new rule applies to all employers covered by the NLRA, which includes most private sector employers.

An employer’s failure to post the required notice may be considered interference with employees’ NLRA rights. Therefore, even without other violations, failure to post the new notice can serve as the basis for an unfair labor practice charge. As a practical matter, the penalty for failing to post the notice will be minor, provided that the failure to post is the employer’s only violation and that, upon investigation of the unfair labor practice charge by the NLRB, the employer posts the required notice expeditiously. Under such circumstances, the regulation states that there will rarely be a need for further administrative proceedings. If, however, an employee alleges additional unfair labor practices, the repercussions for failing to post the notice may be more significant. For example, the failure to post may toll the six month statute of limitations that ordinarily governs unfair labor practice charges.

Further, the regulation contains an anti-retaliation provision stating that an employer may not retaliate against any employee for filing a charge with the NLRB or testifying at a hearing concerning an alleged violation of the posting requirement. Employers should be conscientious about posting the required notice for the additional reason that the failure to do so could be used to create a retaliation issue by an employee who anticipates that he/she is about to be disciplined or terminated. Specifically, the employee, fearing impending discipline or termination, may file a charge relating to the employer’s failure to post the required notice, thereby making the subsequent discipline or termination appear to have been retaliatory.

Employers with non-unionized workplaces should not disregard the posting requirement. Employers in non-unionized workplaces may still be subject to unfair labor practice charges, and the NLRB may bring enforcement actions against nonunionized employers who have interfered with their employees’ rights to engage in “protected concerted activity” under the NLRA.